Keeping each other on edge

N.L. Rajah
In recent times, a series of stormy issues between the executive, the powers that be and the judiciary has had the common man clutching his head in despair. The shrillness in public discussions leaves him with an uncomfortably distinct impression that this is the end of the road for an independent judiciary. Such anguish, however, exposes a poor understanding of the complex web that constitutional relations between the three organs of the state – the executive, the judiciary and the legislature – inevitably are.
Every developed constitutional democracy in the world has had its share of such showdowns. But at the end of the day, such tussles have only strengthened democracy and not weakened its structure as the history of constitutional governance the world over would attest.
In England, in 2003, the then government announced the abolition of the office of the Lord Chancellor (who traditionally also headed the judiciary) and further declared that a Supreme Court of the United Kingdom was to be established without so much as consulting or informing the judiciary. This resulted in huge public outcry. The result was that Lord Woolf (then Lord Chief Justice) and Lord Falconer (then Lord Chancellor) started a series of discussions that involved the judiciary and the government about “the key principles and principal arrangements” that would govern the new establishment. In 2004, the consensus arrived at during such talks was ultimately reduced to an agreement known as the “Concordat”. The terms of this agreement were then collated in a statute by enactment of the Constitutional Reform Act, 2005, which managed in large measure to dissipate the tensions between the executive and judiciary. Perhaps it is high time India takes a serious look at an option such as this.
The chain
As Lord Woolf so wisely pointed out, the three organs of the state are like three chains that hold the structure of the state together. He observed, “If one chain slackens, then another needs to take the strain. However, so long as there is no danger of the chain breaking, the fact that this happens is not a manifestation of weakness but strength.”
In India, even when there was no strict separation of powers, we had the remarkable case of John Peter Grant who was the Chief Justice of the Supreme Court of Bombay in 1829.
He asserted his judicial powers in a striking manner in the celebrated case of Moro Raghunath. Raghunath was orphaned at the age of 14. The British placed him in the guardianship of a person called Pandurang Ram who was related to the Peshwas. The Bombay government was committed to treat him as a privileged ward. The guardianship was contested by Raghunath’s father-in-law who filed a habeas corpus before the Supreme Court of Bombay contending that Raghunath had been illegally detained by Pandurang Ram. A writ was issued, but the government of the day headed by John Malcom as Governor refused to obey it. Instead the Governor wrote to the judges to refrain from any conduct which would have, “the effect of producing open collision between our authority and yours” Grant, responded to this by simply shutting down all the courts in Bombay contending, “I have therefore to announce that the court has ceased on all its sides, and that I shall perform none of the functions of a Judge of the Supreme Court until the court received an assurance that its authority will be respected and its process obeyed and respected and rendered effectual by the Government of this Presidency.” This raging struggle between the government and the judiciary ultimately was resolved with the intervention of the Privy Council on a technical issue relating to jurisdiction. However, it serves to remind us that the judiciary versus executive conflict in this country has a long history and with the coming of the doctrine of separation of powers, tensions are inevitable.
Judicial independence
The tensions that ran high during the Emergency between the executive and the judiciary are too well known and documented to merit repetition here.
Catastrophic as each of these instances was considered when it occurred, judicial independence remains unaffected and firm in these countries even today.
Constitutional principles such as the independence of the judiciary in a well-established system of democratic governance are tall towers built on the sure foundations of tried and tested principles. They do not come apart at the trace of a slight tempest.
In a bygone era, authority was accepted on principles set by a culture of reverence. Today none of the three organs of the state is inclined to extend this privilege to the other. Therefore, every constitutional authority can seek to validate its action only on the touchstone of reason and conformity to the constitutional ethos. Concerns about the independence of the judiciary being in peril have set alarm bells ringing.
However, these are neither meant to escalate tensions nor to confound the common man but are to be treated as a wake-up call to the constitutional authorities concerned to get their act together and resolve issues amicably within the larger constitutional framework. In the wise words of constitutional scholar Dennis Pearce, “For the good of our society, it is better for the combatants to realise that they are there to serve the people, not their own ends, and to adapt their conduct accordingly.”
N.L. Rajah is Senior Advocate, Madras High Court

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